News / National
Chamisa's MP sues Mnangagwa
06 Jun 2021 at 18:35hrs | Views
CHITUNGWIZA North legislator Godfrey Karakadzai Sithole has taken President Emmerson Mnangagwa to court for assenting to the Constitution of Zimbabwe Amendment (No.1) Bill, which he argues was illegally passed by Senate with the assistance of the Constitutional Court.
Besides violating Section 147 of the constitution by straddling two different lives of parliament, Sithole also argues that the ConCourt erred when it passed judgement in case number CCZ4/20 when it ruled that the declaration of invalidity was suspended for 180 days, after legislators Jessie Majome and Innocent Gonese had challenged the Bill's passage in Senate after it failed to get the required two-thirds majority.
Sithole cited the Parliament of Zimbabwe, Speaker of the National Assembly Jacob Mudenda, the Senate President Mabel Chinomona, Justice minister Ziyambi Ziyambi, Attorney-General Prince Machaya, Clerk of Parliament Kennedy Chokuda as well as senate members who voted for the passage of the Bill.
Constitutional Amendment (No.1) Bill, among other intentions, sought to allow the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without subjecting them to the open selection process and public interviews.
This allowed Mnangagwa to retain Malaba at the helm of the judiciary after the approval of the Constitutional Amendment (No.2) Bill, which enabled judges to serve beyond the age of 70.
The extension was however successfully challenged in the High Court, with an appeal by the aggrieved parties still pending at the Supreme Court.
The lawmaker argues that the Senate vote of 6 April 2021 on the Bill had no foundation at law because they could not vote on a nullity. He argued it violated section 147 of the constitution as it straddled two different lives of parliament, which is unconstitutional, among other illegalities.
The Bill straddled the eighth parliament which ran from 2013 to midnight on Sunday 29 July 2018, and the currently running ninth parliament, whose tenure ends in 2023.
Section 147 of the constitution reads: "On the dissolution of parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses."
"Accordingly I seek an order, inter alia, for the nullification by this Honourable court, of the vote of April 6, 2021, on the Bill by the Senate, as it had no foundation at law. In other words, Senate could not vote on a nullity. The postulate that you can't put something on nothing and expect it to stay there is not only an enduring principle but is also unassailable," he wrote in his founding affidavit.
The Bill was first debated and passed on 25 July 2017 in the National Assembly, in terms of section 328 of the constitution which requires the affirmative threshold of two-thirds vote in each House.
In terms of the law, the same vote was required in the Senate to pass the same Bill and on 1 August 2017, the senate purported to have achieved this threshold. Gonese and Majome however challenged the passage of the Bill on the basis that the two-thirds minimum threshold had not been attained.
Although the matter was filed in 2017 judgement was only passed on 31 March 2020.
The ConCourt declared that the passing of the Constitutional Amendment (No.1) Bill of 2017 by the Senate on 1 August 2017 was inconsistent with provisions of section 328 (5) of the constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House.
At its last reading in the Senate on 1 August 2017, it received 53 affirmative votes whereas the full membership of the Senate is 80. A two-thirds majority meant that at least 54 senators should have voted for the Bill. Constitutional Amendment Bill (No.1) of 2017 was declared invalid.
"The declaration of invalidity shall have effect from the date of this order but is suspended for a period of 180 days subject to that the Senate is directed to conduct a vote in accordance with the procedure of amending the constitution prescribed by section 328 (5) of Constitution Amendment Bill (No.1) of 2017," ruled the court.
Sithole said it is common cause that the 180 days noted by the court expired in September 2020 and the order was not complied with.
An application was filed by the first to third respondents, that is the Parliament of Zimbabwe, Mudenda and Chinomona, seeking the extension of the directive in that order. This resulted in judgment CCZ/21 in which the lifespan was extended by a further 90 days.
The legislator said this was unlawful and unconstitutional.
"It is common cause that the judgment in case CCZ24/20 this court declared that the passing of Constitution of Zimbabwe Amendment (No.1) was inconsistent with the provisions of the constitution. As a result, the vote by the Senate on the day in question was set aside."
"However this court mero motu proceeded to make an order that was sought before it and directed the Senate to conduct a vote in respect of Constitution of Zimbabwe Amendment (No.1) 2017 in accordance with the procedure for amending the Constitution within 180 of the grant of its order. It is this part of the order which I contend, with respect, is unconstitutional," he said.
Sithole said the Bill was also a nullity because it was passed after violating section 147 of the constitution which provides that on the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.
"…the Bill automatically lapsed with the dissolution of the eight Parliament," he said.
"In the circumstances, I submit that the directive in CCZ4/20 whose lifespan was extended in CCZ 1/21 unlawfully resuscitated a Bill that had automatically lapsed in terms of section 147 of the Constitution."
He said nothing could arise from the vote in the senate as it was a nullity and that even an assent arising from it would be of no legal moment.
The violation of section 147 of the constitution was the main reason why Justice Anne-Marie Gowora gave a dissenting judgment when a three-judge ConCourt, also consisting of Justices Rita Makarau and Bharat Patel, heard a substantive application on 10 November 2020 by parliament before granting another extension in a judgment delivered on 26 February 2021.
While Makarau was in favour of granting a 90-day extension, Patel sat on the fence and said he agreed with both judges although crucially he leaned towards Makarau who argued that accepting that section 147 of the constitution was violated would question the constitutionality of the 31 March court order.
She said this would be inconsistent with the principle of finality of a Constitutional Court decision in a particular case.
Gowora ruled that Parliament's application was unconstitutional as it breached section 147 of the constitution.
"The order of invalidity as regards the Bill cannot be ignored. This is the first premise in the consideration of the application. It was adjudged as being invalid. That said, the Bill cannot be resuscitated through this application," Gowora said.
"It lapsed by operation of law. The granting of the application in these circumstances would be inconsistent with the constitution.
"…For the above reasons, it is my view that the application should be dismissed with no order as to costs."
Sithole insists that the proceedings in the Senate on 6 April 2021 by the fourth respondent (Ziyambi) wherein there was a purported debate and vote on a lapsed Bill should be declared invalid and unlawful and accordingly set aside.
He said the Senate vote for a lapsed constitution of Zimbabwe Amendment (No.1) which was not lawfully on the order paper of the Senate was a breach of the oath or affirmation of Member of Parliament by the respondents.
"Consequently that any assent by the fifth respondent (Mnangagwa) arising from the passage of Constitution of Zimbabwe Amendment (No.1) Bill by the Senate on 6th of April 2021 is of no force," Sithole said.
He further argued that Parliament, the Speaker, Senate President, and Mnangagwa have failed to fulfil a constitutional oath and are also in breach of their obligations in terms of Section 196 of the constitution.
He said as an MP he is sworn to uphold the constitution, an obligation which he takes very seriously, hence the application.
Besides violating Section 147 of the constitution by straddling two different lives of parliament, Sithole also argues that the ConCourt erred when it passed judgement in case number CCZ4/20 when it ruled that the declaration of invalidity was suspended for 180 days, after legislators Jessie Majome and Innocent Gonese had challenged the Bill's passage in Senate after it failed to get the required two-thirds majority.
Sithole cited the Parliament of Zimbabwe, Speaker of the National Assembly Jacob Mudenda, the Senate President Mabel Chinomona, Justice minister Ziyambi Ziyambi, Attorney-General Prince Machaya, Clerk of Parliament Kennedy Chokuda as well as senate members who voted for the passage of the Bill.
Constitutional Amendment (No.1) Bill, among other intentions, sought to allow the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without subjecting them to the open selection process and public interviews.
This allowed Mnangagwa to retain Malaba at the helm of the judiciary after the approval of the Constitutional Amendment (No.2) Bill, which enabled judges to serve beyond the age of 70.
The extension was however successfully challenged in the High Court, with an appeal by the aggrieved parties still pending at the Supreme Court.
The lawmaker argues that the Senate vote of 6 April 2021 on the Bill had no foundation at law because they could not vote on a nullity. He argued it violated section 147 of the constitution as it straddled two different lives of parliament, which is unconstitutional, among other illegalities.
The Bill straddled the eighth parliament which ran from 2013 to midnight on Sunday 29 July 2018, and the currently running ninth parliament, whose tenure ends in 2023.
Section 147 of the constitution reads: "On the dissolution of parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses."
"Accordingly I seek an order, inter alia, for the nullification by this Honourable court, of the vote of April 6, 2021, on the Bill by the Senate, as it had no foundation at law. In other words, Senate could not vote on a nullity. The postulate that you can't put something on nothing and expect it to stay there is not only an enduring principle but is also unassailable," he wrote in his founding affidavit.
The Bill was first debated and passed on 25 July 2017 in the National Assembly, in terms of section 328 of the constitution which requires the affirmative threshold of two-thirds vote in each House.
In terms of the law, the same vote was required in the Senate to pass the same Bill and on 1 August 2017, the senate purported to have achieved this threshold. Gonese and Majome however challenged the passage of the Bill on the basis that the two-thirds minimum threshold had not been attained.
Although the matter was filed in 2017 judgement was only passed on 31 March 2020.
The ConCourt declared that the passing of the Constitutional Amendment (No.1) Bill of 2017 by the Senate on 1 August 2017 was inconsistent with provisions of section 328 (5) of the constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House.
At its last reading in the Senate on 1 August 2017, it received 53 affirmative votes whereas the full membership of the Senate is 80. A two-thirds majority meant that at least 54 senators should have voted for the Bill. Constitutional Amendment Bill (No.1) of 2017 was declared invalid.
"The declaration of invalidity shall have effect from the date of this order but is suspended for a period of 180 days subject to that the Senate is directed to conduct a vote in accordance with the procedure of amending the constitution prescribed by section 328 (5) of Constitution Amendment Bill (No.1) of 2017," ruled the court.
Sithole said it is common cause that the 180 days noted by the court expired in September 2020 and the order was not complied with.
An application was filed by the first to third respondents, that is the Parliament of Zimbabwe, Mudenda and Chinomona, seeking the extension of the directive in that order. This resulted in judgment CCZ/21 in which the lifespan was extended by a further 90 days.
"It is common cause that the judgment in case CCZ24/20 this court declared that the passing of Constitution of Zimbabwe Amendment (No.1) was inconsistent with the provisions of the constitution. As a result, the vote by the Senate on the day in question was set aside."
"However this court mero motu proceeded to make an order that was sought before it and directed the Senate to conduct a vote in respect of Constitution of Zimbabwe Amendment (No.1) 2017 in accordance with the procedure for amending the Constitution within 180 of the grant of its order. It is this part of the order which I contend, with respect, is unconstitutional," he said.
Sithole said the Bill was also a nullity because it was passed after violating section 147 of the constitution which provides that on the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.
"…the Bill automatically lapsed with the dissolution of the eight Parliament," he said.
"In the circumstances, I submit that the directive in CCZ4/20 whose lifespan was extended in CCZ 1/21 unlawfully resuscitated a Bill that had automatically lapsed in terms of section 147 of the Constitution."
He said nothing could arise from the vote in the senate as it was a nullity and that even an assent arising from it would be of no legal moment.
The violation of section 147 of the constitution was the main reason why Justice Anne-Marie Gowora gave a dissenting judgment when a three-judge ConCourt, also consisting of Justices Rita Makarau and Bharat Patel, heard a substantive application on 10 November 2020 by parliament before granting another extension in a judgment delivered on 26 February 2021.
While Makarau was in favour of granting a 90-day extension, Patel sat on the fence and said he agreed with both judges although crucially he leaned towards Makarau who argued that accepting that section 147 of the constitution was violated would question the constitutionality of the 31 March court order.
She said this would be inconsistent with the principle of finality of a Constitutional Court decision in a particular case.
Gowora ruled that Parliament's application was unconstitutional as it breached section 147 of the constitution.
"The order of invalidity as regards the Bill cannot be ignored. This is the first premise in the consideration of the application. It was adjudged as being invalid. That said, the Bill cannot be resuscitated through this application," Gowora said.
"It lapsed by operation of law. The granting of the application in these circumstances would be inconsistent with the constitution.
"…For the above reasons, it is my view that the application should be dismissed with no order as to costs."
Sithole insists that the proceedings in the Senate on 6 April 2021 by the fourth respondent (Ziyambi) wherein there was a purported debate and vote on a lapsed Bill should be declared invalid and unlawful and accordingly set aside.
He said the Senate vote for a lapsed constitution of Zimbabwe Amendment (No.1) which was not lawfully on the order paper of the Senate was a breach of the oath or affirmation of Member of Parliament by the respondents.
"Consequently that any assent by the fifth respondent (Mnangagwa) arising from the passage of Constitution of Zimbabwe Amendment (No.1) Bill by the Senate on 6th of April 2021 is of no force," Sithole said.
He further argued that Parliament, the Speaker, Senate President, and Mnangagwa have failed to fulfil a constitutional oath and are also in breach of their obligations in terms of Section 196 of the constitution.
He said as an MP he is sworn to uphold the constitution, an obligation which he takes very seriously, hence the application.
Source - NewsHawks
